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[2004] ZALCJHB 7
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Monareng v Commission for Conciliation Mediation And Arbitration and Others (JR163/03) [2004] ZALCJHB 7 (16 March 2004)
IN
THE LABOURT COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE NO.
JR 163/03
AZARIA
OUPA
MONARENG APPLICANT
AND
COMMISSIONER
FOR CONCILIATION
MEDIATION
AND
ARBITRATION 1
ST
RESPONDENT
RAYMOND
DIBDEN 2
ND
RESPONDENT
PEOPLES
BANK LTD INC. PEP
BANK 3
RD
RESPONDENT
JUDGMENT
PAKADE. J
[1]
This is an application for review of the second respondent’s
refusal to grant the applicant condonation for the late referral
of
his dismissal by the third respondent.
[2]
The applicant, who was dismissed by the third respondent on 12
December 2002 for misconduct, referred the dispute to CCMA on
15 July
2003.The duration of the delay is about seven months.
[3]
The reasons furnished by the applicant for the late referral of the
dispute are that he was sick from 05 January 2003 to March
2003 and
had to undergo treatment by the traditional healer. While still
undergoing treatment, he was fetched by his wife from
the traditional
healer because he was wanted by the police for a fraud charge which
had been preferred against him by the third
respondent. He was then
arrested. He was released on bail on 4 July 2003. On 11 July 2003 the
charges were withdrawn against him.
The second reason is that on 04
January 2003 he obtained legal advice that he should appeal against
his dismissal.
[4]
The second respondent’s reasons for refusing condonation is
that the reasons furnished by the applicant for late referral
were
unsubstantiated as there was
no
documentary evidence in support of his contention that he was sick.
Secondly the second respondent found that the applicant has
not shown
good prospects of success on the merits.
[5]
Indeed it is not clear why the applicant could not refer the dispute
before the 5
th
January 2003. However having regard to the
fact that he had to seek legal advice which he obtained on 04 January
2003, it may well
be that he did not know what to do from the 12
th
December 2002 to 4 January 2003. The very fact that he got advice to
appeal from outside the disciplinary inquiry indicates to
me that his
rights were not fully explained to him by the presiding officer. In
my view with this kind of undisputed explanation
of the applicant,
the second respondent should have found that the applicant has, on a
balance of probabilities, sufficiently explained
the delay.
[6]
With regard to prospects of success, the applicant explained that
when he was trying to present his case the chairperson of
the
Disciplinary Inquiry interjected and told him that he was misleading
the inquiry. The type of evidence he was presenting was
that another
employee had entered his teller screen. The presiding officer asked
him how could that happen, and instead of investigating
this piece of
evidence, told him that he was misleading the enquiry. On this basis
the applicant gained an impression that the
presiding officer was
biased against him and had prejudged the case. The second respondent
does not appear to have considered this
point in his ruling as it was
material to and relevant on prospects of success. Had he
applied his mind on this issue and
explore it sufficiently, he might
have arrived at a different finding on the prospects of success more
so that the applicant’s
complaint was also that he was not
allowed to call his witness and his side of the story was not
properly considered. These allegations
against the presiding officer
are consistent with his failure to inform the applicant of his right
to appeal against his finding.
As the third respondent has not
disputed these allegations the matter had to be decided on the
version of the applicant. It discloses
good prospects of success.
[7]
Employment is a fundamental right of a person and it should not be
easy to deny an employee access to court on a mere technicality
where
he has to vindicate his right to fair labour practice. A measure of
flexibility is required in the Court’s exercise
of discretion.
Once doors of the court are closed behind the litigant, that is the
end of his right. Although the applicant’s
explanation of the
delay is not watertight he has shown good prospects on the merits.
Having regard to the principle that the apparently
good prospects of
success on the merits may compensate for a poor explanation,
(ZEALAND
v MILBOROUGH
1991 (4) SA 836
(SECLD)
, the applicant must
therefore succeed.
[8]
In the result the following order is made:
1.
The second respondent’s refusal to grant the applicant
condonation
for late referral of the dispute is set aside and the
applicant is granted condonation.
2.
The applicant is granted leave to refer the unfair dismissal
to
Labour Court for adjudication.
3.
There shall be no order for costs.
__________________
PAKADE
J
JUDGE
OF THE LABOUR COURT
DATE
OF HEARING
: 24
February 2004
DATE
OF JUDGMENT
:
16
March 2004
APPEARENCES
FOR
THE APPLICANT
: In
Person
FOR
THE RESPONDENT
:
No
appearance